Challenges in Regulatory Enforcement and Accountability in Participating States

The enforcement of the regulation depends on the participating states. As such, the question of liability cannot be answered and the accountable party cannot be ascertained, and even it could be, there is no body as such that could enforce the duties and liabilities.

Yes, it does as it will enable identifying responsibility and consequent liability and promulgate states-wide legal regime that provides for general civil liability for environment damages. For example, the 1969 Convention on Civil Liability for Oil Pollution Damage established strict liability and compulsory liability insurance system.

No, it does not. The current international liability regime is limited. It just acts as a tool to focus on their limited utility for ensuring compliance with applicable and relevant environment norms and standards. There is overriding legal difficulty in pointing the liability to the appropriate party. For example, the 1984 Bhopal (Union Carbide) case where the court rejected pointing liability to the parent for damage caused by its local subsidiary, the reason for such rejection was because the US courts declined to hear Indian Liability claims against the parent company in the US.

No, it does not. The current international liability regime is limited. It just acts as a tool to focus on their limited utility for ensuring compliance with applicable and relevant environment norms and standards. There is overriding legal difficulty in pointing the liability to the appropriate party. For example, the 1984 Bhopal (Union Carbide) case where the court rejected pointing liability to the parent for damage caused by its local subsidiary, the reason for such rejection was because the US courts declined to hear Indian Liability claims against the parent company in the US.

Administrative measures, by the term itself, are for administrative efficiency and not for enforcing liability. It may mitigate risk and chances of violation of environmental norms and standards by setting up standard rules and procedures, but cannot enforce liability and damages. They are internal measures that ensure responsibility and compliance and not liability. Hence, there is always a gap in regard to implementation of environmental norms and so, such administrative measures cannot work better than civil and criminal methods, but should work better only with civil and criminal methods.

Environmental charges may not be work alone. The current trend is towards liabilities, which is based on the principle of “polluters pay”. This in itself shows that charges are secondary in nation to enforce environmental norms. Even in this trend of liabilities imposing damages on polluters, there are issues prevalent around collective responsibility and states’ attempt to shift liabilities to corporate. This is the reason why the call for an enforceable international liability regime, as discussed above, that requires liability principle for specific issues.

OECD’s work seems to generally incline towards the objective of environmental charges, as they seem to understand the overriding powers of the state players without their voluntary implementation and enforcement, norms and standards could not be effective. This could be seen with in OECD guidelines for Multinational Enterprises. However, there are few guidelines or conventions that received major support, such as 1969 Convention on Civil Liability for Oil Pollution Damage that provides for strict liability and has preventive principle and economic imperatives.

As seen so far, the combination of financial incentive and penalty or imposition of liability works the best. The former encourages compliance of norms and standards as they also advance economy of the concerned players and the latter with a liability element shapes the liability regime and its enforceability bringing a harmony between international, regional and national laws and norms.

Nothing much has changed in terms of enforcement or implementation, although there has been an increase in number of measures. The factors to this remain the same. https://www.unenvironment.org/news-and-stories/press-release/dramatic-growth-laws-protect-environment-widespread-failure-enforce

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TASK PART 2

The UK - Environment Agency (EA)

Who they are: The Environment Agency (EA) (in Wales, Natural Resources Wales (NRW.

What they Regulate (all environmental law / specific areas). EA is the main body responsible for issuing permits and enforcement (civil, criminal, public or administrative law, company law).

What is their scale? It covers national and local level of regulation. Its guidelines have been increasingly used by operators. Even though it cannot be place at international level, its guidelines harmonise with international standards.

Are they considered successful? See above point that shows the extent of their effectiveness. It is supported further by the fact that it can take enforcement actions, such as serving enforcement notices on operators to rectify breaches of environmental law, or shutting down an operator's activities until the breach has been rectified.

The Environment Agency (EA) (as the principal regulator) takes its enforcement powers very seriously. However, it does not have the necessary resources to enforce in every case and has therefore adopted an enforcement and prosecution policy to assist it in deciding which cases to pursue. Enforcement is generally discretionary, but in some cases enforcement is compulsory. For example, the EA or the local authority (LA) must serve a remediation notice if it finds land to be contaminated, unless remediation can be carried out voluntarily (see Question 14). The EA therefore tends to prioritise the more serious breaches and recurring breaches.

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